For High Court, a Year Of Living Dangerously

By
Robert Marquand, Staff writer of The Christian Science Monitor /
October 7, 1996

BOSTON

A mix of strong constitutional challenges and high-profile topics should make this year's Supreme Court term the most interesting - and perhaps most significant - in years.

The nation's highest legal body faces a host of prickly cases in its 1996-1997 term, which begins today, ranging from whether Americans have a "right to die" with a physician's assistance to whether states can block federal handgun laws. The court will also take up sexual harassment standards and free-speech issues on the Internet. These rulings may well touch the lives of millions, if not most, Americans.

Indeed, with other hot-button cases like presidential immunity on a civil suit and an Arizona case dealing with the right of a state to declare English its official language, the term will be closely watched.

"These cases directly affect a greater number of people than in previous years," says Stephen Shapiro, legal director of the American Civil Liberties Union, "and by taking the controversial assisted-suicide case, the court is saying early on, 'There will be guaranteed fireworks.' "

For some veteran court watchers, however, that isn't saying much. Last year, for example, the Supreme Court handed down few major rulings other than the landmark Romer case, which invalidated a popular Colorado referendum denying homosexuals political rights. The court last year also heard the fewest cases - 75 - in 40 years. In the mid-1980s the court took 150 cases - a number that has steadily dropped, to 108 in 1991 and 84 by 1994.

This year, however, for reasons typically known only to the nine justices, the court has already agreed to 60 cases - 20 more than it took by the first Monday in October last year. Moreover, numerous legally intriguing petitions - including the first Supreme Court test of the Religious Freedom Restoration Act and the Defense Department's "don't ask, don't tell" policy for gay and lesbian members of the military - are still pending before the court.

The court usually decides by the third Monday in January (Jan. 20 this year) which of some 7,000 annual petitions it will hear and rule on by the end of the term, which is traditionally the last weekend in June. "This court will usually duck a controversy if it can," says one legal expert, "but it can't duck the emotional cases forever, as we are seeing."

Yet even if the cases are volatile, that is no guarantee the court is preparing to dramatically change its legal stripes. "We will have to wait and see," says Mark Tushnet, law professor at Georgetown University. "But I think it is unlikely this will be a year of transformation in constitutional law."

As always, dynamics among the nine court members will play a crucial role. In general terms, the court remains split between Justices William Rehnquist, Clarence Thomas, and Antonin Scalia on the right - and Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer in a more moderate position. That leaves Justices Sandra Day O'Conner and Anthony Kennedy as the swing votes, making them two of the most influential members of the court.

Two years ago the tribunal seemed poised to become a conservative activist court. It made sweeping rulings in such sensitive areas as race, religion, and federal powers - dramatically reducing a legal basis for affirmative action and racial voting districts, loosening the separation between church and state, and, for the first time in 60 years, stripping Congress of certain powers. Justices O'Conner and Kennedy cast the key votes in a half dozen contested 5-to-4 decisions.

Search for a center

Yet last spring, rather than reaffirming the conservative shift, which occurred in tandem with the "Republican Revolution" of House Speaker Newt Gingrich, the court backed off. Instead, last term was characterized by a fitful search for a centrist identity and consensus among the justices. On the most socially divisive cases, the court affirmed basic individual rights and civil liberties, especially in the area of free speech.

The Constitution's equal-protection clause was invoked in both the Colorado Romer decision and in a Virginia Military Institute ruling requiring females to be admitted to that venerable male-only state college. Kennedy wrote the majority opinion in the Romer case and was joined by O'Conner.

By last June the two harder-edged conservatives, Justices Scalia and Thomas, had been left a bit isolated and angry. Even Chief Justice Rehnquist joined the majority on VMI. Scalia wrote numerous lengthy and blistering dissents, saying in one that the court was living in "another world," designing laws for a country "I do not recognize."

Yet while the conservative judicial revolution envisioned under Presidents Reagan and Bush - one that would reverse Roe v. Wade, for example - has stalled, the coming term will be a test for a quieter conservative revolution overseen by Rehnquist: states' rights.

In recent terms the most significant new legal rulings by the high court have affirmed the power of states to challenge federal laws. In 1993 it ruled that states did not have to comply in every instance with federal regulations on radioactive waste. Last year in the Seminole Indian Tribe case the court blocked an attempt to sue the state of Florida in federal court. This year several cases directly relate to states' rights (also called "new federalism") and a host of others could be decided in that direction.

The biggest of these new federalism cases is a challenge to the Brady handgun bill, passed by Congress in 1994 and used in this year's presidential campaign by the White House, requiring local law-enforcement officials to check the background of prospective gun-buyers and stop sales to convicted felons. Sheriffs in Arizona and Montana have challenged the law, and federal appeals courts have split on the issue.

Other such cases include an Indian tribe in Idaho that is attempting to sue state officials, a California case involving the right of parents to sue states to enforce federal child support laws, and the English-only dispute in Arizona.

"Federalism is where much of the action on this court is to be found," says Doug Kmeic, a law professor at Notre Dame in New Hampshire.

Suicide squeeze

Certainly the most significant single case of the term deals with euthanasia. Assisted suicide is being discussed by legal experts as a Roe v. Wade-type decision. The issue percolated in the lower courts and the media for years largely due to the efforts of suicide advocate Jack Kevorkian, a doctor from Michigan who has helped nearly 40 people, several of whom were in great pain, to end their lives.

Yet last spring the issue suddenly came front and center when two federal courts, in California and New York, ruled that assisted suicide for mentally competent individuals was not only legal, but a constitutionally protected right. Some 34 states have outlawed assisted suicide. The new federal rulings cover nearly 25 percent of the US population. Last week the high court took both cases in a decision that will set national standards. Other cases to watch: